RICO Act, Proposed Class Action against the Church - it is filed

[provoman]

Laura Gaddy has filed a proposed Class Action Lawsuit against the Church

all docs here https://drive.google.com/open?id=1NuthcL9L-MZhnDRKcwp1E49Sx2472Dud

Edited August 6, 2019 by provoman

[Duncan]

I'm seeing a bunch of photos of Joseph Smith, the Hill Cumorah and some toy thing, is that what we're supposed to see?

[Scott Lloyd]

4 minutes ago, Duncan said:

I'm seeing a bunch of photos of Joseph Smith, the Hill Cumorah and some toy thing, is that what we're supposed to see?

Looks to be some sort of PowerPoint thing, but I don’t have the ambition to wade through it. Perhaps provoman could be prevailed upon to summarize it. 

[Calm]

At the bottom is the proposed class action paper. I can’t cut and paste from it and haven’t read much, but it specifies it is not about beliefs, but is focused on the Church misrepresenting its history and thus leading to members making choices they wouldn’t have if they had known the truth. 

I don’t think she has a chance in Hades in winning since part of it is the Church claiming to be divinely led if aI understand correctly. 

[provoman]

9 minutes ago, Duncan said:

I'm seeing a bunch of photos of Joseph Smith, the Hill Cumorah and some toy thing, is that what we're supposed to see?

Picture are exhibits to show how the narrative was misrepresented.

3 minutes ago, Scott Lloyd said:

Looks to be some sort of PowerPoint thing, but I don’t have the ambition to wade through it. Perhaps provoman could be prevailed upon to summarize it. 

Summary: False narrative of: First Vision, Book of Mormon; Book of Abraham is false; 1st Watson Letter and Hill Comurah narrative; all the false narrative was known or should have been known and false narrative caused damage to plaintiff

[provoman]

4 minutes ago, Calm said:

At the bottom is the proposed class action paper. I can’t cut and paste from it and haven’t read much, but it specifies it is not about beliefs, but is focused on the Church misrepresenting its history and thus leading to members making choices they wouldn’t have if they had known the truth. 

I don’t think she has a chance in Hades in winning since part of it is the Church claiming to be divinely led if aI understand correctly. 

Does not seem much different from the Tom Phillips lawsuit.

[Calm]

Tries to avoid that problem by claiming it is not about belief, but when it gets into whether or not JS translated scripture that is belief.  So it seems similar to Phillips so far in the detailed approach.

She has Moroni being born after 600 BCE, but before Christ visited the Americas. I am wondering if she is conflating Moroni with the claim that Joseph also/first? identified the angel as Nephi.  Using the name of the former with details of latter?

Edited August 6, 2019 by Calm

[smac97]

Preliminary thoughts:

1. The extensive references to the "Mormon Corporate Empire" are not going to go over well.  Federal judges like litigants to play it straight, particularly when they are represented by counsel.  This kind of overwrought, emotion-laden rhetoric should not be in a federal complaint (and an attorney with 34 years of practice under her belt surely knows this).

2. The factual allegations seem generally accurate until paragraph 37, which then veers into allegations about Church teachings which are "false."  The truth or falsity of religious doctrines is a question that is virtually never addressed by the civil courts.  Civil courts are simply not interested in being a forum for people to argue about religious claims.  It's called the "Ecclesiastical Abstention Doctrine."

3. Paragraph 38 starts a long diatribe about the Correlation Committee and it's purported "censorship" proclivities.  Oh, brother.

4. Paragraph 40 claims that members "are constantly reminded through the Empire’s {there's that word again!} various communication methods to avoid reading anything other than correlated material concerning Mormon history."  Well no, that's factually not correct.  But it's also irrelevant to the court.

5. Paragraph 43 claims that "'Lying for the Lord' is a phrase that has been used by former CES employees to describe the attitude of some CES employee administrators whereby employee instructors of young students have been told by their superiors in CES management and even apostles in the Quorum, to avoid discussion of controversial topics, because some things which are true are not very useful."  This is dumb.

6. Paragraph 44: "High-level employees in the CES have even suggested that disobedience to the edict to lie about Mormon history could result in the loss of an inferior’s employment."  Oh, brother.

7. Paragraph 49 posits that this lawsuit is based generally on a theory of "fraud."  "GADDY brings this Class Action Complaint and Demand for Jury Trial (Complaint) against COP to obtain damages for herself and similarly situated persons injured by longstanding false statements of material fact and factual misrepresentations critical to the historical foundation of Mormonism. Said false statements and misrepresentations of historical fact have been and continue to constitute a fraudulent scheme perpetrated for generations by the COP, through its employees and agents upon unwitting Mormons, as well as potential converts to Mormonism."

Well, good luck.  Fed. R. Civ. P. 9(b) requires that complaints predicated on fraud must be pleaded "with particularity."  So far I'm not seeing much in the way of particulars.

8. Paragraph 56: "Mormonism considers itself Christian, though many of its doctrines are foreign to basic Christian beliefs."

Oi!  The attorney who wrote this is seriously asking a federal judge to adjudicate what constitutes "basic Christian beliefs?"  

9. Paragraph 62: "Mormonism’s foundational facts, as taught by the COP, are that after Jesus Christ was crucified, priesthood authority essential to the true gospel was taken from the Earth..."  The subsequent paragraphs go into the Church's narrative about Joseph Smith, the First Vision, the Angel Moroni, etc.  Again, the attorney who wrote this is seriously asking a federal judge to render factual findings about Joseph Smith's theophanies in the early 19th century?

10. Things get pretty stupid in paragraph 65: "Neither Mormon historical scholars nor other academics have found evidence to support the orthodox version of Smith’s first vision, i.e. the official version."

What, pray tell, would the attorney expect the Church to produce as "evidence to support" the Church's narrative?  How would a judge in 2019 hope to be able to ascertain and evaluate competent, probative, and admissible "evidence" about whether Joseph Smith saw God the Father and Jesus Christ, or not?

Paragraph 69 brings it home: "COP has always known, or should have known, that its official version of the first vision is false."  Really?  How is it false?  What "evidence" is there for the judge to evaluate on this issue?  Is this "evidence" competent, probative, and admissible?  And even assuming it is, the underlying question (the veracity of Joseph Smith's claimed theophanies) are about as firmly rooted in the "Ecclesiastical Abstention Doctrine" as you can get.  The attorney may as well as the judge to adjudicate the visions of Paul, or the resurrection of Jesus.  Not gonna happen.

The attorney harps on the Church defrauding members by withholding the 1832 account of the First Vision.  He's a bit late to the game here, as the "Gospel Topics" essay, "First Vision Accounts" specifically references that account, and provides a link to the complete text.

11. Paragraph 74 is actually kind of funny: "Young Mormons like GADDY were never taught the truth, i.e., that Smith’s first vision was a typical Christian theophany, as indicated in his 1832 handwritten account where Smith sought the Lord, who appeared and granted him forgiveness for his sins."  Here the attorney is conceding the factual reality of the Lord appearing to Joseph Smith.  And yet he wants to claim that the Church committed "fraud" by not specifically using the 1832 account in missionary lessons and such.  Weird.

12. Paragraph 78 quotes the older introduction in the Book of Mormon which describes the Lamanites as "the principal ancestors of the American Indians."  Again, the attorney is behind the times a bit here.

13. Paragraph 81 alleges fraud based on paintings in visitors' centers.  No joke.

14. Paragraph 84: "The truth is that the Book of Mormon was dictated by Smith while he peered at a stone in a hat. This manner of Book of Mormon manuscript creation may have been a divination or a reading from some document buried inside the hat, perhaps dictation by inspiration, or some combination thereof, but it does not support the claim that Smith translated (in any ordinary sense of the word) the Book of Mormon directly from gold plates..."

Oh, boy.  This is *exactly* the sort of thing judges do not want to see in their courtroom.  The attorney starts this sentence with "The truth is..."  Well, the Court is not particularly interested in adjudicating whether religious claims are "true."  These are left to individuals to accept, or not.  The attorney, in order to prevail on a fraud claim, will need to marshal evidence (competent, probative and admissible-in-court-under-the-Federal-Rules-of-Evidence evidence, mind you, and probably contemporaneous with Joseph Smith, IOW, nearly 200 years old) as to whether God inspired Joseph Smith during the translation process.  Good luck with that.

15. Paragraph 86 quotes a newspaper article from 1830 as competent evidence of how Joseph Smith translated the Book of Mormon.  Seriously.

16. Paragraph 97 asserts that "The Book of Abraham, purportedly written by the Hebrew prophet and translated by Smith, has been proven a fraud by Egyptologists," and that "In 1966, the papyri from which the Book of Abraham was translated, and which was believed to have been lost in the Great Chicago Fire, was rediscovered."  Again, the attorney is behind the times.  

17. Paragraphs 102-121 have a laundry list of "misrepresentations."  Perhaps culled from the CES Letter?  Pretty lazy writing here.

18. Subsequent paragraphs go through the personal life of the named plaintiff.  Lots of emotional rhetoric.  Poor form for an experienced attorney.

19. The causes of action cited are:

• "Common Law Fraud";
• "Fraud in the Inducement to Enter into an Oral Contract";
• "Breach of Equitably Imposed Fiduciary Duties";
• "Fraudulent Concealment";
• "Civil RICO"; and
• "Intentional Infliction of Emotional Distress."

20. The attorney, Kay Burningham, is the author of "An American Fraud: One Lawyer's Case Against Mormonism."  So she has an axe to grind.

I think the Church's attorneys will not spend much (if any) time on the Complaint's structural defects (failure to properly plead fraud-based allegations), and will instead file a Motion to Dismiss based on the Ecclesiastical Abstention Doctrine.  And I think such a motion will be granted.

I sure hope the attorney did not charge her client for preparing this complaint, because A) it looks like it is the result of considerable time and effort, and B) it is going to fail to get out of the gate.

Thanks,

-Smac

Edited August 8, 2019 by smac97

[Calm]

She uses “upon information and belief” as a reference. Is there a particular legal defintion for that phrase?

[Calm]

I feel like I could play a lawyer now because all the points Smac brought up I had redflagged along with a couple of others (everything taught at BYU goes through Correlation...somehow doubt my weaving, physics, EE, calculus, etc classes had to be correlated).

All these lawsuits I have been educated about on this board are paying off.

Thanks, smac, for detailed analysis so I didn’t feel compelled by my obsessive nature to do the same. 

[smac97]

13 minutes ago, Calm said:

She uses “upon information and belief” as a reference. Is there a particular legal defintion for that phrase?

Yes.  Per Black's Law Dictionary, "upon information and belief" is defined as "I got bupkis."

😁

It essentially means "I don't have specific information sufficient to present a factual statement, so I'll preface anything I feel like saying with 'upon information and belief' and call it good."

This phrase is used all the time in legal pleadings, but I do not think it can be used in a fraud context.  Allegations of fraud must be pleaded "with particularity," and I'm not sure they can be asserted merely "upon information and belief."

Thanks,

-Smac

Edited August 6, 2019 by smac97

[Scott Lloyd]

1 hour ago, Calm said:

At the bottom is the proposed class action paper. I can’t cut and paste from it and haven’t read much, but it specifies it is not about beliefs, but is focused on the Church misrepresenting its history and thus leading to members making choices they wouldn’t have if they had known the truth. 

I don’t think she has a chance in Hades in winning since part of it is the Church claiming to be divinely led if aI understand correctly. 

Oh brother! It’s Tom Phillips all over again. 

[RevTestament]

1 hour ago, provoman said:

Laura Gaddy has filed a proposed Class Action Lawsuit against the Church

all docs here https://drive.google.com/open?id=1NuthcL9L-MZhnDRKcwp1E49Sx2472Dud

Nope. Not a snowball's chance in Hell. Even if it gets by a dismissal, there is no way to prove the first two allegations. I stopped reading there:

1. That the Church knew or should have known that the last version of the First Vision contained in the official history of the Church is false.... Really? Who is not to say that it is not the most complete and accurate version?

2. That the Church has known or should have known that the plates were not directly translated. Who is to say that Joseph Smith did not use Urim and Thummim to translate the Book of Lehi; and so the depictions of art are accurate with regard to at least that book?

Methinks this case is a publicity stunt.

Edited August 6, 2019 by RevTestament

[Calm]

59 minutes ago, smac97 said:

Yes.  Per Black's Law Dictionary, "upon information and belief" is defined as "I got bupkis."

Good guess on my part, lol. It did come across as ‘I want to state something as factual without support, but you should trust me on it’.

[sjdawg]

I'm no fan of the Mormon church but these class actions seems pointless and destined to fail. I don't get the point

Edited August 6, 2019 by sjdawg

[USU78]

9 hours ago, provoman said:

Picture are exhibits to show how the narrative was misrepresented.

Summary: False narrative of: First Vision, Book of Mormon; Book of Abraham is false; 1st Watson Letter and Hill Comurah narrative; all the false narrative was known or should have been known and false narrative caused damage to plaintiff

And the over/under on this silliness surviving motion to dismiss is?

[ALarson]

9 hours ago, Calm said:

I don’t think she has a chance in Hades in winning since part of it is the Church claiming to be divinely led if aI understand correctly. 

I agree.

Here's some more information:

https://www.courthousenews.com/scathing-lawsuit-seeks-punitive-damages-from-mormon-church/

Also, in searching about this, I found that her attorney was Kay Burningham.  I've heard her speak and was impressed (not on this topic, of course....).  I wasn't even aware she was a member at the time.

She is the author of this book:

https://www.amazon.com/American-Fraud-Lawyers-against-Mormonism-ebook/dp/B004S7FTXE/ref=sr_1_1?keywords=Kay+Burningham&qid=1565099374&s=gateway&sr=8-1

 

Edited August 6, 2019 by ALarson

[PacMan]

This complaint is pretty embarrassing. I’d seriously consider striking the complaint and sanctioning the attorney. The fraud allegations are a mere restatement of the legal elements, which have been repeatedly held as insufficiently pled. It’s really, really bad. 

[smac97]

49 minutes ago, ALarson said:

I agree.

Here's some more information:

https://www.courthousenews.com/scathing-lawsuit-seeks-punitive-damages-from-mormon-church/

Also, in searching about this, I found that her attorney was Kay Burningham.  I've heard her speak and was impressed (not on this topic, of course....).  I wasn't even aware she was a member at the time.

She is the author of this book:

https://www.amazon.com/American-Fraud-Lawyers-against-Mormonism-ebook/dp/B004S7FTXE/ref=sr_1_1?keywords=Kay+Burningham&qid=1565099374&s=gateway&sr=8-1

From a "MormonThink" page dedicated to her:

Quote

Kay Burningham, author of An American Fraud: One Lawyer's Case against Mormonism, is a civil trial attorney with over 25 years experience in California and Utah, representing both corporate defendants and individual plaintiffs. She has litigated cases involving misrepresentation and fraud in the context of product liability warnings, health care disclosures, insurance coverage and employment and real-estate contracts.

Per the Utah State Bar website, she was admitted in 1985.

So she's been a practicing lawyer for 34 years, and she apparently has extensive experience in litigating fraud claims.

So her excuse for drafting and filing this massive-waste-of-her-client's-money-and-the-federal-court's-time-and-resources lawsuit is . . . what?

My assessment of the complaint has essentially nothing to do with her antipathy toward the Church.  I just do not think much of our legal system being used for patently frivolous and vexatious lawsuits.  That, I'm sorry to say, is what this lawsuit is.  The Utah Court of Appeals has advised litigants and their attorneys that “[a] complaint alleging fraud should be filed only after a wrong is reasonably believed to have occurred; it should serve to seek redress for a wrong, not to find one.”  Shah v. Intermountain Healthcare, Inc., 2013 UT App 261, ¶ 12, 314 P.3d 1079 (quoting Segal v. Gordon, 467 F.2d 602, 607–08 (2d Cir. 1972).  Any attorney worth his (or her) salt would have known this lawsuit should never have been filed, and that it will be unsuccessful.

I have litigated many dozens of lawsuits predicated on a fraud theory.  They virtually always fail, most often at the very beginning of the lawsuit because the lawyer did such a poor job of vetting the claims and pleading them in the complaint (much like what we are witnessing here).  I eventually became so fed up with the sheer number of poorly-drafted fraud-based lawsuits that I wrote an article about it and had it published in the Utah Bar Journal:  A Primer on Pleading Fraud Claims in Utah.  

Preparing and filing a complaint based on a fraud theory is not rocket science.  It's not that hard.  It just takes a bit more investigation and research and time.  But it also takes a measure of professionalism to decline to file a fraud claim when the facts and the law cannot support such a claim.

Thanks,

-Smac

Edited August 6, 2019 by smac97

[Stargazer]

11 hours ago, provoman said:

Laura Gaddy has filed a proposed Class Action Lawsuit against the Church

all docs here https://drive.google.com/open?id=1NuthcL9L-MZhnDRKcwp1E49Sx2472Dud

Another lawyer-enrichment action.

Maybe I should have gone to law school instead of learning computer science.

[PacMan]

17 minutes ago, smac97 said:

From a "MormonThink" page dedicated to her:

Per the Utah State Bar website, she was admitted in 1985.

So she's been a practicing lawyer for 34 years, and she apparently has extensive experience in litigating fraud claims.

So her excuse for drafting and filing this massive-waste-of-her-client's-money-and-the-federal-court's-time-and-resources lawsuit is . . . what?

My assessment of the complaint has essentially nothing to do with her antipathy toward the Church.  I just do not think much of our legal system being used for patently frivolous and vexatious lawsuits.  That, I'm sorry to say, is what this lawsuit is.  The Utah Court of Appeals has advised litigants and their attorneys that “[a] complaint alleging fraud should be filed only after a wrong is reasonably believed to have occurred; it should serve to seek redress for a wrong, not to find one.”  Shah v. Intermountain Healthcare, Inc., 2013 UT App 261, ¶ 12, 314 P.3d 1079 (quoting Segal v. Gordon, 467 F.2d 602, 607–08 (2d Cir. 1972).  Any attorney worth his (or her) salt would have known this lawsuit should never have been filed, and that it will be unsuccessful.

I have litigated many dozens of lawsuits predicated on a fraud theory.  They virtually always fail, most often at the very beginning of the lawsuit because the lawyer did such a poor job of vetting the claims and pleading them in the complaint (much like what we are witnessing here).  I eventually became so fed up with the sheer number of poorly-drafted fraud-based lawsuits that I wrote an article about it and had it published in the Utah Bar Journal:  A Primer on Pleading Fraud Claims in Utah.  

Preparing and filing a complaint based on a fraud theory is not rocket science.  It's not that hard.  It just takes a bit more investigation and research and time.  But it also takes a measure of professionalism to decline to file a fraud claim when the facts and the law cannot support such a claim.

Thanks,

-Smac

The mere fact that she lists so many aspects of church history that she disagrees with suggests that there is not a single one that is "material."

This is going to go into my legal pleadings collection that I affectionately call, the "Binder of Shame."

[smac97]

On 8/6/2019 at 8:58 AM, PacMan said:

The mere fact that she lists so many aspects of church history that she disagrees with suggests that there is not a single one that is "material."

That's a good point.  A fact is “material” only if “the knowledge or ignorance of [it] would naturally influence [a party's] judgment . . . in estimating the degree and character of the risk involved in a transaction.”  Walter v. Stewart, 2003 UT App 86, ¶ 23, 67 P.3d 1042 (second alteration and omission in original) (citation and internal quotation marks omitted).

The laundry list of grievances in the complaint work against her, as she will have to prove up all nine elements of fraud with particularity as to each purported misstatement of fact in the complaint, including the plaintiff's reliance on it.  Good luck with that and showing that each of these was "material."

I'm reminded of a line from the 1995 movie, Sabrina: "More isn't always better, Linus. Sometimes it's just more."

So it is when one is pleading a fraud claim. More isn't always better, Kay.  Sometimes it's just more.  😀

But this is probably neither here nor there.  I don't think the Church's attorneys will spend time parsing such things out, and will instead focus on the Ecclesiastical Abstention Doctrine.

Thanks,

-Smac

Edited August 20, 2019 by smac97

[ksfisher]

14 minutes ago, smac97 said:

That's a good point.  A fact is “material” only if “the knowledge or ignorance of [it] would naturally influence [a party's] judgment . . . in estimating the degree and character of the risk involved in a transaction.”  Walter v. Stewart, 2003 UT App 86, ¶ 23, 67 P.3d 1042 (second alteration and omission in original) (citation and internal quotation marks omitted).

The laundry list of grievances in the complaint work against her, as she will have to prove up all nine elements of fraud with particularity as to each purported misstatement of fact in the complaint, including the plaintiff's reliance on it.  Good luck with that and showing that each of these was "material."

I'm reminded of a line from 1995's Sabrina: "More isn't always better, Linus. Sometimes it's just more."

So it is when one is pleading a fraud claim. More isn't always better, Kay.  Sometimes it's just more.  😀

But this is probably neither here nor there.  I don't think the Church's attorneys will spend time parsing such things out, and will instead focus on the Ecclesiastical Abstention Doctrine.

Thanks,

-Smac

So why would a lawyer with so much experience file a lawsuit that is so defective?  Is the idea to actually win the suit, or perhaps something a bit more Fabian?

[ALarson]

8 minutes ago, ksfisher said:

So why would a lawyer with so much experience file a lawsuit that is so defective? 

She wrote her book in 2011 ( https://www.amazon.com/American-Fraud-Lawyers-against-Mormonism-ebook/dp/B004S7FTXE/ref=sr_1_1?keywords=kay+burningham&qid=1565106014&s=gateway&sr=8-1    An American Fraud: One Lawyer's Case Against Mormonism)

So, this appears to be something she's been wanting to do for awhile (possibly?).  I wonder what her relationship is with Laura Gaddy?  

Quote

Is the idea to actually win the suit, or perhaps something a bit more Fabian?

I can't imagine she thinks she can win this case.   But to embarrass or get attention or cause some bad PR for the church is more like it, IMO.

But who knows?  Maybe she actually believes this will go somewhere.  (I don't.)

Edited August 6, 2019 by ALarson

[USU78]

21 minutes ago, smac97 said:

That's a good point.  A fact is “material” only if “the knowledge or ignorance of [it] would naturally influence [a party's] judgment . . . in estimating the degree and character of the risk involved in a transaction.”  Walter v. Stewart, 2003 UT App 86, ¶ 23, 67 P.3d 1042 (second alteration and omission in original) (citation and internal quotation marks omitted).

The laundry list of grievances in the complaint work against her, as she will have to prove up all nine elements of fraud with particularity as to each purported misstatement of fact in the complaint, including the plaintiff's reliance on it.  Good luck with that and showing that each of these was "material."

I'm reminded of a line from 1995's Sabrina: "More isn't always better, Linus. Sometimes it's just more."

So it is when one is pleading a fraud claim. More isn't always better, Kay.  Sometimes it's just more.  😀

But this is probably neither here nor there.  I don't think the Church's attorneys will spend time parsing such things out, and will instead focus on the Ecclesiastical Abstention Doctrine.

Thanks,

-Smac

Damages = actual harm + proximate causation. How's she gonna prove that?